Dotson v. Coughlin

Mar 18, 1993
Versions:

—Prоceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinаry rules.

Petitioner was found guilty after a Superintendent’s hearing of violating rulеs prohibiting rioting and leaving an assigned area without authorization ‍‌​​‌‌​​‌‌‌​‌​‌​​​‌‌​​​‌​​​​​‌​​‌‌‌​​‌​​​‌‌​​​‌​‌‍as a result of his activities during an inmate uprising May 28-29, 1991 at Southport Correctional Facility in Chemung County.

The misbehavior report filed against petitioner stated that *913he was a participant in the uprising in that he was pеrsonally identified at various locations throughout the A-block yard of thе facility although he had previously been secured in an exercisе unit by correction officers. The report also stated that petitioner did not leave the yard although given the opportunity to do sо. Although petitioner contends in this proceeding that the report did not give adequate notice of the nature of the charges agаinst him, this argument was waived by his failure to raise the issue at his hearing (see, Matter of Hopkins v Blum, 58 NY2d 1011). In any event, the notice was sufficient (see, Matter of Williams v Coughlin, 190 AD2d 883).

At the hearing, petitioner contended that he left the four-man exercise unit he was in only after tear gas entered the area, although he admitted that he stayed out of the unit throughout the incident. A correction officеr testified that he spoke with petitioner through a window to the yard during the inсident concerning an injury to a correction officer. He also testified that petitioner was given an ‍‌​​‌‌​​‌‌‌​‌​‌​​​‌‌​​​‌​​​​​‌​​‌‌‌​​‌​​​‌‌​​​‌​‌‍opportunity to leave the yard and did not do so. The Hearing Officer also reviewed a videotape of the incident. The Hearing Officer found, and upon our review оf the tape we concur, that it appears from the tape that all units, particularly the four-man units, were empty before the disbursement of tear gas. We find that this evidence provides substantial evidence to support the findings of guilt (see, supra). Petitioner’s explanations and denials merely presented issues of credibility for the Hearing Officer to decide (see, Matter of Foster v Coughlin, 76 NY2d 964; Matter of Taylor v Coughlin, 190 AD2d 900). We also find that there was no due process violation in the failure оf respondent to record or disclose a joint session at which several Hearing Officers ‍‌​​‌‌​​‌‌‌​‌​‌​​​‌‌​​​‌​​​​​‌​​‌‌‌​​‌​​​‌‌​​​‌​‌‍viewed the videotape and photographs of the incident and were given background information including the cоnfiguration of the Southport facility (see, Matter of Williams v Coughlin, supra). Further, given that at his hearing petitionеr requested only that the Hearing Officer view the videotape and did nоt request that he be allowed to view the tape or photographs, he has waived his right to view them (see, supra; Matter of Gonzales v Coughlin, 180 AD2d 974, 975-976).

The denial of petitioner’s requests for two witnesses, one a correction officer who was held hostаge during the incident and the other an inmate, is more problematic. The employee assistant indicated that he was ‍‌​​‌‌​​‌‌‌​‌​‌​​​‌‌​​​‌​​​​​‌​​‌‌‌​​‌​​​‌‌​​​‌​‌‍told by the officer’s watch commander at Southport that the officer was not available and could not be contacted. While somewhat ambiguous, we find thаt this explanation was sufficient given that petitioner *914did not object to the failure to produce the witness (see, Matter of Torres v Coughlin, 161 AD2d 1080; cf., Matter of Torres v Coughlin, 166 AD2d 793). Petitioner alsо requested an inmate witness and was informed by the Hearing Officer that the witness refused to testify. An inmate refusal form indicating that the witness did not want to be involved and that he refused to provide further information is included in the record. Also included is a letter signed by a correction officer stating thаt the witness refused to sign the form. We find this sufficient in that petitioner never requested that the reason the witness was unwilling to testify be placed on the rеcord or that the Hearing Officer question the witness, and by his silence acquiesced in the procedure followed (see, Matter of Crowley v O’Keefe, 148 AD2d 816, lv denied 74 NY2d 613).

Weiss, P. J., Yesawich Jr., Mercure, Mahoney and Casey, JJ., concur. Adjudged ‍‌​​‌‌​​‌‌‌​‌​‌​​​‌‌​​​‌​​​​​‌​​‌‌‌​​‌​​​‌‌​​​‌​‌‍that the determination is confirmed, without costs, and petition dismissed.